Nghipunya v The Minister of Justice (HC-MD-CIV-MOT-GEN-2021-00343) [2022] NAHCMD 510 (14 October 2022) – Constitutionality of 61 of the Criminal Procedure Act, 51 of 1977 (CPA) 

The applicant applied for an order declaring section 61 of the CPA, as amended, unconstitutional on the grounds that the words ‘in the interest of the public’ and ‘the administration of justice’ are unintelligible and incapable of being properly interpreted, resulting in an accused who applies for bail having to face an impossible hurdle to be granted bail. It was argued that the provision was void for vagueness and impermissibly infringed on the applicant’s constitutional rights to liberty, to a fair trial, and to be presumed innocent. 

The appeal was heard and determined by a full bench of the High Court as follows; two judges – the majority – dismissed the application with no costs, and one judge (dissenting/minority) upheld the application with costs. 

The majority held that:

The words ‘in the interest of the public’ and ‘the administration of justice’- are not easy to interpret but Namibian jurisprudence has provided guidelines that can be followed. 

Section 61 was enacted by the legislature in response to a significant increase in serious crime, which is even more prevalent today. Each case is to be decided on its own particular set of facts and circumstances.  Section 61 is utilized in particular circumstances and for particular types of offenses contained in Part IV of Schedule 2.  

The presiding officer is required to conduct a full inquiry into whether or not the accused should be granted bail. The discretion although wide is not unfettered in a constitutionally impermissible manner. Grounds of appeal exist in section 65, and the decision of the presiding officer can be interfered with if the decision is wrong.  The presiding officer is an administrator of justice and is mandated to obtain the necessary evidence to do justice.  This includes explaining to the accused what its concerns are, especially in relation to the words ‘in the public interest’ and ‘in the administration of justice’.  

The types of serious crimes that can be committed are not a numerus clausus, so too, a presiding officer should not be inhibited by a closed list of considerations when it considers an application for bail. 

A comparative study of open and democratic societies shows that they too have provisions permitting the refusal of bail in the interests of justice in special cases or exceptional circumstances, even in jurisdictions where an accused has a right to bail, as opposed to a mere right to apply for bail.  

The respondent has demonstrated that the limitations on the applicant’s constitutional rights contained in section 61 are rational and justifiable in the circumstances, and required in the interest of legitimate objectives, namely, to curtail the increase of serious crime. 

The minority held that:

Flynote: Held: that section 61 provides a higher standard above the ordinary and traditional grounds to satisfy the court that an applicant is worthy to be admitted to bail.

The onus rests with the accused to persuade the court that he or she must be admitted to bail. It is accordingly difficult for an accused person, who is subject to section 61 to be expected to persuade the court that he or she is a worthy candidate of being admitted to bail, notwithstanding the application of section 61, when he or she does not know what those twin interests of justice and the administration of justice entail.

The words: ‘the interests of the public and the administration of justice’ are not defined and are vague as not to give sufficient guidance for legal debate, therefore rendering them unconstitutional for vagueness. 

It is recommended that legislature follows the examples in other jurisdictions such as South Africa, eSwatini, and Canada, which have defined what these interests may entail, of course leaving some room for the court, where appropriate, to include further grounds as they adjudicate matters before them. In the case of Botha, the court was hopeful that the legislature would define the twin interests. This was as far back as 1995.

The amount of R600 that is involved in a crime under Schedule 2, for section 61 to be operational, may need to be revisited, considering that the legislation was promulgated 31 years ago, and the value of money has changed over the years. If not, persons charged with offenses involving the said amount may be denied bail in terms of section 61 when that amount has by now become trifling.

China Harbour Engineering Co (Pty)Ltd v Indigenous PBF (HC-MD-CIV-MOT-GEN-2021-00022) [2022] NAHCMD 544 (11 October 2022) – Jurisdictional facts that must be proved when relying on section 350(1)(a) of the Companies Act, 28 of 2004

The applicant brought an application seeking an order to wind up the respondent in terms of s 350(1)(a)(i) on the basis that the respondent was commercially insolvent and thus unable to pay its debts.

The applicant alleged that on 14 March 2018, it and the first respondent concluded a settlement agreement, which was made an order of court. In terms of the settlement agreement the applicant, amongst other terms, agreed that the first respondent will do all that was necessary and sign all papers required for the deregistration of two mortgage bonds, subject to the condition that the payment of the amounts secured by the mortgage bonds were to be secured by way of a bank guarantee in favour of the applicant. 

In the alternative, the first respondent had to confirm that an amount of N$90 000 000 has been paid into the trust account of the Attorneys for the benefit of the applicant, and which amount will be paid over to the applicant on the date of deregistration. The applicant attached both the settlement agreement and the mortgage bonds to the affidavit in support of its claim. 

The first respondent contended that the applicant based its claim on a loan agreement but failed to annex a loan agreement to its founding affidavit. The first respondent further denied that the debt was due and payable on the basis that the agreement concluded between the parties was a property development loan agreement which would only be repayable after the property was subdivided, the township establishment approved, gazetted, and the subdivided erven sold to cancel the bonds. These conditions had not been met and therefore, the debt was not due and payable.

The Court held that:

The jurisdictional facts that must be proven to rely on section 350(1)(a)(i) are that the applicant must be a creditor of the respondent, the debt must be due and payable, and there must be proof that, despite the service of the notice, the debtor has neither paid the amount claimed nor secured or compounded it to the reasonable satisfaction of the creditor.

The parties, amongst other terms, agreed that the fifth respondent will on behalf the first respondent pay to the applicant the amount of N$90 000 00, as such, the applicant is a creditor of the first respondent, for not less than N$100 – in terms of the settlement agreement, and that demand in terms s 350(1)(a)(i) was served on the first respondent, and that despite this demand, the first respondent has not paid any amount nor secured or compounded any amount to the reasonable satisfaction of the applicant.

The application of the applicant succeeded, and the first respondent was placed under provisional order of liquidation in the hands of the Master of the High Court.

Shared Advertising CC v In Touch Cargo Nam (Pty) Ltd (HC-MD-CIV-ACT-CON-2021-01259) [2022] NAHCMD 485 (9 September 2022) – Exceptions – agreement forbidden by statute; Enrichment – must be extensively pleaded and proved

This matter arose from a partly written, partly oral contract entered into between 1^st defendant and plaintiff for the supply and sale of fuel to 1^st defendant. The 2^nd to 4^th defendants bound themselves as sureties and co-principal debtors to the plaintiff for the debts of 1^st defendant. This was between a number of agreements entered into between the parties between 5 October 2015 to 1 November 2018, all of which were for the sale and supply of fuel to 1^st defendant with other 3 defendants signing as sureties and co-principal debtors at various times. 

The defendants raised exceptions against the amended particulars of claim by the plaintiff premised on the jurisdictional fact that the amended particulars of claim do not contain the necessary averments to sustain a cause of action and/or fail to disclose a cause of action against the defendants. At the hearing, the defendants argued that, firstly, for a contract to be enforceable, it needs to be legal and if the contract is found to be null and void, then there can be no enrichment claim. If the court finds that the contract between these parties is enforceable, then such enforcement will cause the parties to commit a crime as it is a crime to buy fuel on credit. 

Secondly, that for the enrichment claim to be successful, the party claiming must allege that the party who received the fuel was enriched and the party who gave or delivered the fuel without receiving payment, was deprived.  The party who was deprived, must further prove exactly what it was deprived of and cannot claim the total outstanding amount because it can for instance, not claim the levies payable automatically, unless if such levies were paid over.

The Court considered the general principles regarding exceptions and held that:

The question was therefore whether, the subordinate legislation was applicable in the matter or whether it needed to be proved as alleged by the plaintiff. When looking at the specific action that is condemned by the legislation, it is important to determine the intention of the legislator with the specific clause and to interpret it within the said ambit. In this instance, the court found that to enforce a contract like the one before it would be to allow conduct which the Minister specifically saw fit to render as a criminal offence and as such the contract is illegal, and therefore grounds 1, 2 and 3 of the exception succeeded. 

Unenforceable agreements can form the basis of enrichment claims, but for the court to determine whether it indeed supports an enrichment claim, it must be decided on a case-by-case basis, applying the general principles. It is however necessary to allege the exact terms of the enrichment.  Ground 4 was therefore dismissed but ground 5 was successful. 

The Hills Body Corporate v Grove (HC-MD-CIV-MOT-GEN-2022-00197) [2022] NAHCMD 457 (2 September 2022) –Application to have judgment obtained in the magistrate’s court enforced in the High court 

The applicant issued summons against the respondent in the Magistrate’s Court Windhoek for unpaid monthly levies and for the respondent’s failure to contribute to the body corporate fund. The applicant obtained default judgment against the respondent in the amount of N$64 913.79 and a warrant of execution was issued against the moveable property of the respondent. The deputy sheriff’s return of service was one of a nulla bona. On 10 June 2022, the applicant launched an application in terms of rule 65 of the Rules of the High Court, to have the judgment obtained in the Magistrate’s Court enforced in the High Court and to have the respondent’s immovable property declared specially executable. 

The Court held that:

The applicant did not exhaust the remedies available to it in terms of the Magistrates’ Court Act. The messenger neither demanded nor attempted to demand satisfaction of the writ.

The applicant prematurely approached the High Court for an order declaring the property concerned specially executable. The applicant did not make out a case on its papers why the High court, through process-in-aid, should grant an order declaring immovable property specially executable based upon the orders of another court.

In the result, the application was refused.

The Promotion of Law and Access to Justice Project of FASZ Legal Consultancy. fedden@consultfasz.com.